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.xyz dismisses own ads as “puffery”

Kevin Murphy, April 30, 2015, 12:15:14 (UTC), Domain Registries

XYZ.com has dismissed its own claim that .xyz is the “next .com” as “mere opinion or puffery”, in an attempt to resolve a false advertising lawsuit filed by Verisign.
Attempting to get the lawsuit resolved without going to the expense of a full trial, the registry has filed with the court a lengthy, rather self-deprecating deconstruction of its own marketing.
It says among other things that the blog posts and videos at issue are “not statements of fact but rather mere puffery, hyperbole, predictive, or assertions of opinion”.
Verisign sued XYZ and its CEO, Daniel Negari, in December, claiming that the video embedded below reflects “a strategy to create a deceptive message to the public that companies and individuals cannot get the .COM domain names they want from Verisign, and that XYZ is quickly becoming the preferred alternative.”

Last week XYZ filed a motion asking the court to rule on the pleadings only, meaning it would not go to trial. It appears to be an effort by the smaller company to avoid any more unnecessary legal fees.
“Verisign is attempting to litigate XYZ out of business complaining about a vanity video, website blog posts, and opinions stated to a reporter,” the motion says.
The document goes to great lengths to argue that the video, blog posts and interviews given by Negari are not “statements of fact”, but rather mere “hyperbole”.
It even goes to the extent of arguing that its ads make Verisign look good:

XYZ’s claim to be “the next .com” could not plausibly harm Verisign’s commercial interest because the claim reinforces that Verisign’s .COM is the most-popular, most-successful domain. Perhaps consumers think that since .XYZ is the next .COM, they should not buy other new domains. Perhaps consumers buy more .COM domains because XYZ has promoted Verisign as the market leader. But Verisign suffering any injury as a result of XYZ’s statements is implausible.
…
Some might view the old Honda in the video with the “COM” license plate as trusty and reliable, and the Audi sports car with “XYZ” as high maintenance, impracticable, and too trendy.

Verisign may or may not win the lawsuit, but it does seem to have succeeded in getting XYZ to cut the balls off of its own marketing.
Verisign has not yet filed a response to XYZ’s motion, which will be heard in court May 8.
You can download the PDF of the motion here.

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Comments (5)

  1. Saul says:
    April 30, 2015 at 4:40 pm

    ‘But Verisign suffering any injury as a result of XYZ’s statements is implausible.’
    That says it all really… last I heard it’s called advertising and competition in an open marketplace Verisign know the rules of the game they really should take their bat and ball and go home. It’s like the 1st grade nerd of the school teasing the 6th grader and the 6th grader is actually caring.

    Reply
  2. John Berard says:
    April 30, 2015 at 5:34 pm

    Kevin,
    Filing lawsuits or issuing other legal artifacts to make a public relations point has long been an essential marketing tool.
    At first, I thought xyz was trying to draw Verisign into a public fight, much like a candidate hoping to get to debate the incumbent, but it may be that neither the first step (the video) nor the second (backing away from the claim) were planned.
    Too bad. If the video script had read “nearly impossible,” Verisign would have been less able to counter punch. And if they had, xyz could have poked them again with a “what are you worrying about?” response, highlighting again how Verisign’s strength (the incredible number of dotCom registrations) is really its weakness (can’t be many good ones left).
    Ultimately, new gTLDs will be judged less by total registrations than by the number of websites brought online and renewals.
    xyz should keep its car running.
    John Berard

    Reply
  3. John Berryhill says:
    April 30, 2015 at 6:13 pm

    I gather the common legal term of art in advertising and contract law, “puffery”, is a new one for you.
    For example, commercials say “Red Bull gives you wings”. Does Red Bull give you wings? No.
    So the question arises in advertising law as to how Red Bull gets away with making a demonstrably false statement in their ads. The answer is “puffery”. It’s not really saying “we’re full of crap”. Red Bull, after all, does contain stimulants, so in some highly metaphorical sense it “gives you wings”. “Puffery” is the type of promotional statement common in advertising which makes a positive suggestion about the product or service, but not one on which a purchaser would reasonably rely in making a purchasing decision.
    So, here are some sad facts, for those previously unaware of “puffery”:
    Keebler cookies are not actually made by elves.
    Red Bull does not give you wings.
    Drinking Dos Equis will not make you the most interesting man in the world.
    There is nothing special about an Aqua Velva man.
    Mentos will not turn you into a charming imp to whom women will be attracted.
    Using Tena menstrual pads will not improve your dance moves.
    Drinking Coca-Cola will not bring about world peace.
    All of these statements are expressly or implicitly made in television commercials through the use of various words and images which convey those messages. If held to a strict standard of “truthfulness”, they are all false.
    In the domain industry, it is also sadly true that registering a domain name at GoDaddy will not cause supermodels to kiss you, nor will registering a .xxx name cause money to fall from the sky.
    Personally, I have always wondered about Ivory soap being “99 44/100 % pure”, and I suspect this implies it to be .56% composed of nuclear waste, biological warfare agents, and/or Ebola virus. Either that or it is merely puffery.

    Reply
    • Saul says:
      April 30, 2015 at 6:28 pm

      Very nice even if all my dreams now lay shattered beside me now 😉

      Reply
    • Kevin Murphy says:
      April 30, 2015 at 6:33 pm

      I was not aware that the term “puffery” had legal weight until today, but it was quite easy to infer as much from the motion.
      I published the above post knowing full well — or at least strongly suspecting — that that’s what it was.
      If there was a point to the post, it was to draw attention to the fact that Verisign has used its substantially larger bankroll to force a relatively tiny competitor to disparage its own marketing spin, even to the point of basically admitting that .com is the better TLD.

      Reply

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